Richter v Bloempro CC v Others (69531/2012) [2017] ZAGPPHC 1168 (20 September 2017)

Richter v Bloempro CC v Others (69531/2012) [2017] ZAGPPHC 1168 (20 September 2017)

The court found that the order dismissing Richter's business rescue application was erroneously granted in his absence. The withdrawal of opposition was limited to Absa's intervention application, as confirmed by correspondence and conduct between the parties. The procedural error arose when the court proceeded to dismiss the main application in the unopposed motion court after granting leave to intervene, despite the matter having become opposed. The absence of Richter and his attorney was not wilful, and they were justified in expecting the matter to be removed to the opposed roll. The error was both in the process of seeking judgment by Absa and in the granting of default judgment by...

Citation
[2017] ZAGPPHC 1168
Parties
Applicant: Dawid Jacques Richter; Respondent: Bloempro CC; Respondent: Luke Bernard Saffy N.O.; Respondent: Tsiu Vincent Masepe N.O.; Respondent: ABSA Bank
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 September 2017
Case Number
69531/2012
Procedural Posture
Civil Application / Application for Rescission of Judgment Following SCA Leave and Remittal
Outcome
The application for rescission is upheld. The order dismissing Richter's business rescue application is set aside. The business rescue application will proceed on an opposed basis. Applicant is granted leave to supplement papers. Costs awarded against the 4th Respondent.
Judges
NV Khumalo
Legal Topics
Rescission of Judgment, Business Rescue, Default Judgment, Leave to Intervene, Uniform Rules of Court Rule 42
Civil Procedure Commercial and Corporate Rescission of Judgment Business Rescue Default Judgment Leave to Intervene Uniform Rules of Court Rule 42

Case Brief

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Parties

Dawid Jacques Richter

Applicant

Bloempro CC

Respondent

Luke Bernard Saffy N.O.

Respondent

Tsiu Vincent Masepe N.O.

Respondent

ABSA Bank

Respondent

Procedural Posture

Civil Application / Application for Rescission of Judgment Following SCA Leave and Remittal

Legal Issues

  1. 1 Whether the order dismissing Richter's business rescue application was erroneously granted in his absence.
  2. 2 Whether the withdrawal of opposition by Richter pertained only to Absa's intervention application or to the main application as well.
  3. 3 Whether procedural irregularity or error justifies rescission under Rule 42(1)(a) of the Uniform Rules of Court.

Ratio Decidendi

The court found that the order dismissing Richter's business rescue application was erroneously granted in his absence. The withdrawal of opposition was limited to Absa's intervention application, as confirmed by correspondence and conduct between the parties. The procedural error arose when the court proceeded to dismiss the main application in the unopposed motion court after granting leave to intervene, despite the matter having become opposed. The absence of Richter and his attorney was not wilful, and they were justified in expecting the matter to be removed to the opposed roll. The error was both in the process of seeking judgment by Absa and in the granting of default judgment by...

Court Disposition

The application for rescission is upheld. The order dismissing Richter's business rescue application is set aside. The business rescue application will proceed on an opposed basis. Applicant is granted leave to supplement papers. Costs awarded against the 4th Respondent.

Orders

  • The Applicant's application for rescission is upheld.
  • The order made by Louw J on 16 May 2013 dismissing the Applicant's application for business rescue is set aside.